The EEOC Came Knocking (Part Two): Effective Position Statements

For Part Two of my "EEOC Came Knocking" series (click here for Part One), I thought I’d offer some tips on how to present an effective position statement as part of your response to an EEOC charge. A solid position statement is critical to the employer’s defense of an EEOC charge. It is the company’s opportunity to tell the its side of the story, point out relevant case law, and hopefully convince the EEOC investigatorit didn’t discriminate against or harass the charging party.

There are many different ways you can set up a position statement — there really is no one "right" way to do it. Sometimes an attorney will prepare the entire position statement. Other times, HR or another executive will prepare it. Often, it’s combination of the two. Irrespective of how you choose to do it, this list includes things I believe are important to include in any position statement.

1. Start with an explicit denial. This can be just a few sentences, but I recommend starting with a strong opening statement explicitly denying the company discriminated and/or harassed (whatever the charge may be) the charging party.

2. Don’t forget the small details. Explain the nature of the company’s business. Likewise, explain the charging party’s job (job duties, employment history, reporting channels, etc), and how that job fits into the company’s bigger picture. Remember, while you know everything about the company and its business, the EEOC investigator probably has no idea. These details can be critical to the overall story.

3. Explain your EEO policies and procedures. You will likely be asked to produce a copy of your policy manual in the Request for Information, but make sure you take a few sentences in the position statement to explain the policies and how they are enforced. Explain how employees become aware of the policies and complaint procedures. Include a copy of the charging party’s signed acknowledgement, confirming he/she has received, read, and understood the policy manual. (Side note: Don’t use acknowledgement forms? Start immediately!) If the employee did not follow reporting procedures, make sure to mention that.

4. Explain the employment decision. Identify facts and circumstances that gave rise to the allegedly adverse employment action. If the charging party was terminated for excessive absenteeism, explain not only the absences, but how the absences affected the company and why they weren’t acceptable. If the charging party has prior disciplinary action, explain it. Make sure you include all supporting documentation.

5. Address comparators/similarly situated employees. If the charging party specifies other employees who were allegedly similarly situated and treated better, discredit that contention. The standard for "similarly situated" is quite high — show why the employees are not, in fact, similarly situated with the charging party. Did the charging party violate a rule three times, while the comparator violated it once? Has the comparator been successfully employed by the company for 25 years, while the charging party was only employed for one year? If the situations are dissimilar in any way, make sure you point it out.

6. Affirmatively show non-discrimination, if possible. For example, in a pregnancy discrimination case, if another female employee has been pregnant, given birth, and successfully returned to work under the same supervisor, reference it. In an age discrimination case, if you can show that other employees who are the same age or older than the charging party work under the same manager without issue, that needs to go in your position statement. Though you likely won’t be able to do this in every case, when you can, don’t miss the opportunity to include what could be a critical part of the employer’s defense.

7. Consider other possible defenses. You should consider whether you can use defenses such as timeliness, constructive discharge, same actor inference, offers of reinstatement, or after acquired evidence. This is one area in particular where assistance of counsel is key — employment lawyers are trained to spot and properly apply these defenses.

8. Review other proceedings involving the charging party. Has the charging party filed a claim for unemployment? Workers’ compensation? An unfair labor practice claim? If so, make sure you review as many of those details as you can, and check to see if the charging party has taken inconsistent positions. If he/she has, include this in the position statement.

9. Decision-maker review. Make sure the decision-makers review the charge and confirm the position statement’s completeness and accuracy. Remember, they could be confronted with the details if the case proceeds past the administrative stage and into litigation.

10. Position statement becomes a public record. Keep this in mind. Not only does it become a public record, it is discoverable, and could be used in subsequent litigation.

Bonus. Counsel review. This is quite possibly the most important step (of course, coming from the lawyer!). If you already have counsel preparing the position statement, you are covered here. If, however, you decide to prepare the position statement yourself, I recommend, at the very least, having counsel review the position statement before it goes out. Counsel can add strong legal arguments and defenses, and can just generally confirm that the position statement is legally sound before you file it. Remember, once you file it, you can’t get it back!

I hope these tips are helpful for those of you faced with responding to an EEOC charge. Though the position statement is just one part of the overall response, it is, perhaps, the most critical. Take care to ensure it is done properly, so you know you’re presenting the very best defense possible for your company.